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Defamation and Social Media: Freedom of Speech but to what extent?

“Mi ago talk di tings on mi Facebook/Instagram/Twitter” is a common saying by Jamaicans in recent years as persons use social media to vent their frustrations with individuals and companies, as well as to partake in and share the latest gossip. Both reliable and unreliable information is shared with equal exuberance.

But to what extent can one really ‘talk di tings dem’?

Freedom of expression has long been established and recognised to be one of the most fundamental right of individuals within every democratic society. The Jamaican Constitution guarantee the right to freedom of expression. Social media has radically impacted the manner in which persons are able to express and share ideas, disseminate information, and interact socially.

In the case of Matalon, Joseph and Honourable Mayer Matalon OJ v Jamaica Observer Limited [2014], Justice Sykes quoted Lord Hope, who said: “The citizen is at liberty to comment and take part in free discussion. It is of fundamental importance to a free society that this liberty be recognised and protected by the law. The liberty to communicate (and receive) information has a similar place in a free society, but it is important always to remember that it is the communication of information, not misinformation, which is the subject of this liberty. There is no human right to disseminate information that is not true. No public interest is served by publishing or communicating misinformation.”

In this case, it must be highlighted that only truthful information is considered acceptable speech. Social media users have a responsibility to exercise their fundamental right within the limits prescribed by law. The same characteristics of the social media platform which promote freedom of expression can cause social media users to be exposed to lawsuits not only in Jamaica but across various jurisdictions. TheDefamation Act 2013 does not include a provision which states that the social media user who publishes from Jamaica will only be subjected to the defamation rules of Jamaica.

Defamation was defined in the case of Walker vs Whyte and Others [2013] as the publication of a statement containing an untrue imputation against the reputation of another, to a third person. Persons need to be aware that a quick post can be re-shared and re-tweeted in seconds and the author may be found liable for the increased harm done to the individual or company mentioned in the post.

Once an aggrieved party establishes a case of defamation, the social media author will then have the task of establishing one of the defences available which permits him to exercise his/her right to free expression via social media in the manner that was done. The defences provided by The Defamation Act 2013 are: Truth, Fair Comment, Innocent Dissemination, and Qualified Privilege.

While social media users can indeed ‘talk di tings dem’, one has to be mindful that such posts should be true and not defamatory in nature as defamatory content can be disseminated quickly which increases your risk of a lawsuit.